Alberta court throws out racism charge

Alberta Motor Association did not discriminate on the basis of colour, man’s emotions in court ‘pure theatre’ according to judge

The Alberta Provincial Court has rejected a racism charge levied by a former employee against the Alberta Motor Association.

Augustine Ebinu said John Orr, a vice-president at the Alberta Motor Association, terminated his employment during the probationary period because he was black and the company had a policy of not hiring “people like you” for management positions.

But the court categorically rejected Ebinu’s racism charge.

“It is not credible that a vice-president of an organization such as the Alberta Motor Association would utter the words attributed to him by (Ebinu),” said Justice Ingram. “Nor is it credible that (it) had a policy, or that Orr said (it) had a policy, of not hiring persons ‘like (Ebinu).’”

The court pointed out that one of the witnesses called by the employer was a black female vice-president, evidence the company did not have a policy of not hiring minorities for management positions.

‘Impressive’ academic credentials

Ebinu applied for the position of driver education manager with the Alberta Motor Association in Grande Prairie, Alta., after seeing a job advertisement in the Edmonton Journal.

His academic credentials were impressive, the court said. He held two masters degrees, one in technical scientific engineering and the other in agricultural engineering, and had 15 years of experience in teaching, research and administration.

Ebinu was originally from Africa. His early education was in Swaziland and his later education in Europe and Canada.

In Swaziland he had published weekly papers dealing with road safety and wrote a manual called “Tips on Road Safety” in 1990.

After submitting his application for the job with the Alberta Motor Association, Ebinu was interviewed and hired. He signed a written probationary employment agreement.

Shortly after Ebinu was hired, the company began a restructuring.

Employee’s emotions in court ‘pure theatre’, says judge

Orr went to Grande Prairie with the intention of meeting with Ebinu. The court said the purpose of that meeting was to discuss financial statements and the reorganization, something that might have eliminated Ebinu’s position. But the conversation between Orr and Ebinu never got that far.

“I find that (Ebinu) suddenly decided he did not want to discuss the matter any further and that he unilaterally and unjustifiably ended both the discussion and his employment and demanded a letter of termination,” said Justice Ingram.

By his actions, the court said Ebinu demonstrated that he had resigned, not that he had been terminated or constructively dismissed. Further, the court said the resignation was considered, deliberate and unprovoked.

“Orr did not intend to do or say anything to antagonize or anger (Ebinu),” the court said.

“I find that (Ebinu) believed, in the course of the discussion with Orr, that he was about to get fired or his position eliminated, and (he) decided that if he was to be terminated, he would attempt to blame the (Alberta Motor Association) and allege discrimination.”

The court said whenever Ebinu raised the matter of colour or race in his evidence, he became visibly emotional and somewhat agitated, something it called “pure theatre” because he was mature, sophisticated, educated and in control of his emotions.

In short, the court said Ebinu could see the handwriting on the wall and he decided “the best defence was offence.”

The court agreed with the company that Orr did not go to Grande Prairie with the intention of eliminating Ebinu’s position.

For more information see:

Ebinu v. Alberta Motor Assn., 2005 CarswellAlta 1120, 2005 ABPC 156 (Alta. Prov. Ct.)

Rocky Credit Union Ltd. v. Higginson, 1995 CarswellAlta 90, 10 C.C.E.L. (2d) 1 (Alta. C.A.)



Firing probationary employees: What if Ebinu had been fired?

Justice Ingram said there was no evidence Ebinu had been terminated — he had undoubtedly resigned. But the court decided to delve into the realm of “what if” and examine what would have happened to Ebinu, who was on probation, had he actually been fired.

Had Orr said “we don’t hire people like you” and “you are terminated with immediate effect” as charged by Ebinu, the court said it would have been obvious Ebinu’s employment had been terminated. Even if Orr had only told Ebinu that his position was being eliminated in a restructuring, it would likely have been constructive dismissal, Justice Ingram said.

The court would then have been faced with how to handle the dismissal of a probationary employee.

Justice Ingram said it seems to be established as law in Alberta that some justification is required for the dismissal of a probationary employee.

An employer dismissing an employee during a period of probation is subject to some constraint, said Justice Ingram. In Rocky Credit Union Ltd. v. Higginson, the Alberta Court of Appeal set out what Justice Ingram said was an appropriate test to use:

To establish justification for the dismissal of a probationary employee, the employer need only establish that:

(1) it had given the probationary employee a reasonable opportunity to demonstrate his suitability for the job;

(2) it decided the employee was not suitable for the job;

(3) that its decision was based on an honest, fair and reasonable assessment of the suitability of the employee, including not only job skills and performance but character, judgment, compatibility, reliability and future with the company.

In cases of a probationary review, the court will not require the employer establish actual cause, just that the employer decided the employee was unsuitable on the criteria indicated above, the Court of Appeal said.

Justice Ingram said that even had a dismissal occurred in Ebinu, the court would have found the Alberta Motor Association had justification. Ebinu had been given sufficient orientation and training to enable him to demonstrate his suitability for the position.

“I find that (Ebinu) was not suitable for the position for which he was hired having regard to his job skills and performance and that the (employer) had so decided based on an honest, fair and reasonable assessment of (Ebinu),” said Justice Ingram.

But the employer did not dismiss him. Its intent, which was never realized because of Ebinu’s sudden resignation, was to offer to reassign him to a more suitable position.

The court said this was not a case that justified a claim for intentional infliction of mental suffering.

“Even if I were to find outrageous conduct on the part of the defendant — and I do not — which was calculated to produce mental suffering — which it was not — there is clearly no evidence of any actual harm that is a visible and provable illness,” said Justice Ingram.

“Being shocked, disappointed, angered, humiliated, belittled, demeaned or intimidated, and being ‘affected’ by it to the point of telling one’s family doctor, which was the full extent of (Ebinu’s) evidence as to the alleged mental or emotional distress, falls far short of the nature or extent of the ‘provable illness’ required to found an action for mental suffering or distress.”

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